Friday, January 16, 2015

Cert Granted in SSM Cases: Don't Pay Much Attention to the Rewording of the Cert Questions

by Michael Dorf

The Supreme Court cert grant in the SSM cases from the 6th Circuit included two rephrased questions presented: "1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?"

An astute observer emailed me asking whether this is not a bit odd. After all, one might think that the answer to both questions is no, so long as the state doesn't license or recognize any marriages, same-sex or opposite-sex.

But in fact, the states all do license and recognize opposite-sex marriages, so the objection is academic. Moreover, under the Court's fundamental rights jurisprudence, states probably cannot simply deny marriage to everyone.

Accordingly, I don't read much significance into the Court's rephrasing of the cert questions. It seems to me that the Court rephrased in such a way as to make clear that in addressing both questions, lawyers are free to (and expected to) address both equal protection and substantive due process issues.

Interesting, because I always thought that at least one or two states would decide to get out of the business of state certified marriages altogether, the way that at least one school district, Prince Edward county in Virginia shut down to avoid integration.

I'm not so sure that it is an academic question, at least over the long term. It's true that "no marriage" isn't the situation now. But if the court rules for gay marriage--and I am assuming they will--conservative states will be under continuing pressure to do something about the issue. Let's not forget the reaction of the losing states to the Civil War and the Jim Crow era. It is naive to think that the conservative states will just roll over like a dog panting to have its belly rubbed. That aint happening either.

Prognostications aside, I'm curious why Professor Dorf thinks that marriage (of any type) is a fundamental right. I'll admit to having only given it the most superficial thought but it strikes me in that vein as implausible--but I have an open mind on the issue so I'd like to hear his thoughts either on this forum or in a column.

Private school is an alternative to public school. How would private means provide the range of state based benefits and obligations of state licensed marriage? If they didn't offer licenses but the same things arose from private ceremonies, the same basic claims will be raised.

Conservative states accepted interracial marriage, which was a much more "dangerous" thing in various cases than here. Anyway, again, state marriage is an ancient thing since it settles a range of public issues. Use some other mechanism, the same basic equal protection concerns will arise.

Marriage has been long accepted as a "fundamental right" by the USSC. See, e.g., Loving v. Virginia. I'm unsure what is "implausible" about it. The trick is that the monopoly of marriage for things like sex has ended.

But, marriage still has a range of things still (such as spousal immunity) that continues to make the right to marry seem to the people at large as a basic, time old civil right of the people.

The supposed end of marriage as of central important isn't quite here yet.

Okay, what is the likelihood that the Court would rule that if a state recognizes any out of state marriages it must recognize all, but that it can pick and choose which marriages to allow within the state?

This would of course lead to some states deciding not to recognize any out of state marriages and require recognition of any marriage out of state to be performed again in the state, thus creating a ban on SSM. This seems to be a real risk in the way the Court has framed the question.

David Ricardo asks, "What is the likelihood that the Court would rule that if a state recognizes any out of state marriages it must recognize all, but that it can pick and choose which marriages to allow within the state?"

None. Zero. Zip. Nada.

Forget legal arguments for the moment, the court has not come all this way and allowed the situation to get this intense to do that. If they did what you suggest it would represent the absolute triumph of the Scalia gambit and I don't believe that Kennedy or Ginsburg will fall for it.

When I saw those questions in news reports, I had an impulse to think that maybe they were posed to split the difference. Is it possible that meeting in the middle more closely attaches to Windsor, in that we respect SSM where it has taken place - whether as a matter of federalism or state relationships? But states aren't required to recognize it within their own laws?

My guess is that I'm just seeing mirages in the language, but I'll throw the question out there.

I'm wondering how states now treat couples who were legally married in another state, but whose marriage would be void, or would have been void at the time of oath taking, according to their own laws. For example, imagine that state S1 prohibits marriage when one or both of the parties is under the age of 17, but state S2 permits marriage under certain conditions, say consent of both parents, when a party is 16 years old. Or suppose that S1 prohibits first cousins from marrying, but S2 allows marriage between first cousins who are over 65 or infertile. If it is standard for S1 to recognize the validity of any such marriage performed in S2, but a special exception is made for same sex marriages, then we have clear evidence of animus or arbitrariness. On the other hand, if it is standard for S1 to consider all these S2 marriages void when the parties move to S1, then the equal protection argument for recognition of same sex marriages performed in other states will be weaker.

Mr. Longfellow may be certain on the issue but others who have far more expertise in the Court have a different opinion.

“The court’s order represents good housekeeping,” said Laurence H. Tribe, a law professor at Harvard.

But Professor Tribe also voiced a small note of caution.

“The rephrased questions,” he said, “technically leave open a middle path along which the court would prevent states from discriminating against same-sex couples lawfully married in their home states without requiring any state to take the affirmative step of issuing its own marriage licenses to same-sex couples.”

What say you Mr. Dorf? Will the Court give the states a workaround by allowing them to not recognize any out of state marriage and require married couples relocating to such a state to re-marry in that state, and thus ban SSM?

"if a state recognizes any out of state marriages it must recognize all, but that it can pick and choose which marriages to allow within the state"

It probably won't be that broad. States still won't have to recognize underage marriages (e.g., some state allowing 14 year olds to marry). It will just be that like race and certain other criteria, sex or sexual orientation won't be a valid ground to deny recognition.

It would be somewhat easier to deny recognition than not performing marriages. But, given the fluidity of population and so forth, it still would be quite difficult, even if possible. Consider, e.g., a couple in a car accident while visiting, one who dies. The surviving spouse, as spouse, has a claim in that state's courts.

"The court’s rephrased questions would potentially allow a similar decision. That would amount to “taking just one short step beyond the court’s invalidation of DOMA rather than moving all the way to full equality,” Professor Tribe said. “But I doubt that the court will in the end stop with that half-measure.”

So the only difference between Professor Tribe and myself is that I believe the court is certain to go all the way and the Professor doubts the court will stop with a half-measure. If there is any meaningful difference between those two statements I fail to see it.

I really don't understand how, at this point the court will rule other than saying that all states must allow gay marriage. After all, what else can the 14th amendment requirement that states not deny their citizens equal protection under the law. Four justices have already taken this position and I think at this point Kennedy cannot but help take this position as well, given teh decisions of most of the other appellate courts. After all, hasn't Scalia said that previous decisions lead to states allowing gay marriage? for once, I agree with Scalia.